Patna High Court
Md. JubairversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the codeine concentration is below the statutory threshold, the NDPS Act does not apply, and therefore bail was granted.
Summary
The petitioner, Md. Jubair, was arrested for alleged possession of 33 bottles of Maxitox Premium cough syrup containing 0.2% codeine and was charged under Sections 20 and 22 of the NDPS Act and Section 30(a) of the Bihar Excise and Prohibition Act. He contended that the seizure list was not complied with, that the codeine concentration was below the 2.5% threshold prescribed in Notification S.O. 826(E), and therefore the syrup should not be treated as contraband under the NDPS Act but rather under the Drugs and Cosmetic Act. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, arguing that any non‑toxic material mixed with a contraband makes the whole quantity a contraband and that the seized amount amounted to a commercial quantity. The Court examined Section 2(d) of the NDPS Act and the central government notification, concluding that the syrup did not fall within the definition of a narcotic drug and that the NDPS Act was inapplicable. Consequently, the Court granted regular bail on a bond of Rs 10,000 with two sureties.
Issues considered
- Whether cough syrup containing 0.2% codeine falls within the definition of a narcotic drug under the NDPS Act.
- Whether the quantity seized constitutes a ‘commercial quantity’ under the NDPS Act.
- Whether the procedural requirements of Section 105 of the NDPS Act were complied with in the seizure.
- Whether the case should be tried under the Drugs and Cosmetic Act instead of the NDPS Act.
Legislation cited
- Bihar Excise and Prohibition Act — s. 30(a)
- Drugs and Cosmetic Act
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 105, 20, 22, 2(d)
Subjects
- bail
- NDPS Act
- codeine
- contraband
- commercial quantity
- seizure procedure
- notification S.O. 826(E)
- Drugs and Cosmetic Act
- concentration threshold
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.33135 of 2026
Arising Out of PS. Case No.-10 Year-2026 Thana- SHAHKUND District- Bhagalpur
======================================================
Md. Jubair, Son of Hakman, Resident of Village- Douna, P.S.- Amarpur,
District- Banka
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Swapnil Kumar Singh, Advocate
For the Opposite Party/s : Mr. Satyendra Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 21-05-2026 Heard the learned counsel for the petitioner and
learned APP for the State through Video Conferencing.
2. The petitioner has prayed for regular bail in a case
registered for the offence punishable under Sections 20, 22 of
N.D.P.S Act and Section 30(a) of Bihar Excise and Prohibition
Act.
3. The case of the prosecution in brief is that, from
possession of this petitioner, altogether 33 bottles each of 100
ml Maxitox Premium cough syrup containing Codeine were
recovered.
4. Learned counsel for the petitioner has submitted
that, nothing has been recovered from the possession of this
petitioner. It is also submitted that all the witnesses to the
seizure list are police personnel, and the police have not
complied the mandatory provisions of Section 105 of the
Patna High Court CR. MISC. No.33135 of 2026(2) dt.21-05-2026
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B.N.S.S. while making the Seizure List. Learned counsel for the
petitioner also submits that the petitioner is innocent and he has
falsely been implicated in this case. It has further been
submitted by the learned counsel for the petitioner that
petitioner is having three criminal antecedents and that are not
of similar nature. He is in custody since 14.01.2026.
5. Learned counsel for the petitioner has further
submitted that under Notification No. S.O. 826(E) dated
14.11.1985 under the Narcotic Drugs and Psychotropic
Substances Act and Rules, 1985 that preparations are exempted
as manufactured drugs provided the preparations contained the
narcotic drugs to the extent permitted in respect of codeine
under Entry No. 35. It is stated that codeine and ethyle
morphine and their salts including dionine all dilutions and
preparations are considered to be manufactured drugs except
those which are compounded with one or more other ingredients
and containing not more than 100 miligrams of the drugs per
doses unit and with a concentration of not more than 2.5 % in
undivided preparations and which have been established in
therapeutic practice.
6. In this case, Codeine Cough syrup containing
codeine phosphate has been recovered from the motorcycle and
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the concentration of the codeine in this drug is approximately
0.2% which is less than 2.5% as provided in the above
notification.
7. Learned APP appearing for the State has vehemently
the application for bail and has submitted that in the case of Hira
Singh and Anr. V. Union of India and Anr., the Hon’ble
Supreme Court has held that entire non-toxic material which is
mixed with the contraband will be considered as the contraband
and as such, the quantity which has been recovered from the
possession of the petitioner is commercial quantity.
8. In this regard, it is worth mentioning that in view of
Section 2(d) of the N.D.P.S. Act, the drug itself is not narcotic
drug then there is no jurisdictional basis for the case and the
Court would not have a reason to go into the question of
quantities. The Central Government has power to issue
notification time to time.
9. Having heard learned counsel for the parties and
considering the facts and circumstances of the case, this Court is
inclined to enlarge the petitioner on bail. The above named
petitioner is directed to be enlarged on bail on furnishing bail
bond of Rs. 10,000/- (Rs. ten thousand only) with two sureties
of the like amount each to the satisfaction of the learned CJM,
Bhagalpur/concerned Court, in connection with Shahkund P.S.
Patna High Court CR. MISC. No.33135 of 2026(2) dt.21-05-2026
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Case No. 10 of 2026.
10. Before parting, it is very strange that the cases
where cough syrups containing codeine are recovered, the
police is invariably filing cases under N.D.P.S. Act whereas in
view of the notification of Central Government (supra)
concentration of codeine being less than 2.5 %, the quantity
does not come under the ambit of contraband. Cough syrup
containing codeine is only a Schedule-H drug for which, the
shopkeeper has to maintain register and he must be a licensed
one. Such type of cases should be filed under Drugs and
Cosmetic Act. It is only the violation of Drugs and Cosmetic Act
whereas, police is invariably misusing the procedure.
(Ashok Kumar Pandey, J)
khushbu/Ritwika
U T
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